State of Elections

William & Mary Law School | Election Law Society

Citizens United

Texas is Shining the Light on the Dark Money in State Politics

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By Vanessa Rogala

The Lone Star State has decided to shine some of its Texas sun on the dark money used in elections. “Dark money” is a phrase commonly used to describe donations made by undisclosed donors. For the last several years, dark money been a growing concern in federal and state elections. According to the Center for Responsive Politics, spending by political organizations that do not disclose their donors increased from approximately $5.2 million in 2006 to over $300 million in the 2012 election. Some credit this rapid increase in dark money to the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, which held that the federal government could not limit organizations from spending money to influence the outcome of elections. And, in an 8 to 1 decision, the Supreme Court also held that Congress can compel disclosure of that  money spent on influencing elections, stating, “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” The Supreme Court’s push for disclosure, however, launched the creation of super PACs and the growing use of disclosure loopholes. Given how quickly dark money has become an influential factor in elections, many states, including Texas, are attempting to address dark money within their borders. [Read more…] about Texas is Shining the Light on the Dark Money in State Politics

Supreme Court strikes down corporate spending ban

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by Patrick Genova

Late last month the Supreme Court struck down Montana’s ban on corporate spending in elections. Montana was the first of many states to push back against the implications of Citizens United. In February the Montana Supreme Court upheld the ban saying that Montana had a rich history against corporate spending that rises to the level of a “compelling interest”, forcing the Supreme Court to take another look at its holding in Citizens United on appeal.

On the same day the Court ruled on the Affordable Care Act they also struck down Montana’s century old law banning corporate spending. The Court reiterated that corporate campaign donations are no different than contributions by any other citizen. Obama spokesman Eric Schultz said of the opinion, “Citizens United mistakenly overruled longstanding cases that protected the fairness and integrity of elections.” But Despite the mounting criticism the Court stands the same as in 2010 with the same five justices voting against the ban. James Bopp Jr., the attorney pushing for unlimited corporate spending, called the decision, “excellent”.

In deciding against Montana’s ban the Supreme Court has effectively shut down challenges that have sprung up since the Citizens United decision. But what will it mean for the future of Montana’s elections? For now it seems that corporate politics will begin to play a large role, whether its for good or bad. This does not mean that the fight against corporate spending is over. Governor Scweitzer said in response to the decision, “We’re going to overrule the Supreme Court with a constitutional amendment, to make it clear that we the people are in charge of America, not we the corporations. Here in Montana, we’re putting it on the ballot.” While the Court seems to be unwavering in their decision, the war against corporate spending is far from over.

permalink: http://stateofelections.pages.wm.edu/?p=4364

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News Brief: Arkansas struggles with money in judicial elections

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Alli Handler

The consequences of the Citizens United decision have been felt across the country and have been widely reported, including by this blog. Some states are focusing specifically on the effect of unlimited campaign money on judicial elections, with advocates arguing that though money is not is not a true substitute for speech in any type of election, the differences between money and traditional speech are more pronounced in the judicial field.

One example of such a tactic is the recent effort in Arkansas to distinguish judicial elections from other democratic mechanisms. The Arkansas Bar Association’s Task Force on Judicial Election Reform has developed ways to reform judicial elections and to curb the corrosive effect of money on an elected judiciary. Justice Robert Brown, the Chairman of the Task Force, has warned of the danger in failing to distinguish the unique nature of judicial elections: “If they’re not different, it will indeed undermine the dignity and the respect for the courts.”

In early March, 2012, the Task Force delivered three reform ideas during a panel discussion at the Clinton Presidential Library. First, Arkansas may develop a response committee dedicated to publicly identifying false statements made in judicial races. Second, they may create a voter guide with factual information about all the candidates. Third, a non-profit may be formed to encourage candidates to run fair campaigns and to disavow any false statements made by third parties.

Critics charge that holding judicial elections to different standards than other races is dangerous because it would provide a slippery slope that would lead to an unconstitutional reduction in free speech. Moreover, critics say, all political elections should be conducted with integrity, making electoral distinctions between the branches irrelevant.

The problem (or advantage) of unlimited money in judicial elections is an issue debated across the country and will be specifically addressed on March 29, 2012 and William & Mary Law School during the annual Election Law Symposium.

Alli Handler is a first-year law student at William & Mary.

permalink: http://stateofelections.pages.wm.edu/2012/03/26/arkansas-struggles

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Montana Supreme Court leading the charge against Citizens United

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by Patrick Genova

Last month the Supreme Court issued a stay on Montana’s Supreme Court decision upholding corporate spending limits in state elections. It seems that the Court may be ready to reexamine Citizens United. What they’ll find is what many states have been saying all along: Citizens United is out of sync with the values of many states.

Montana was the first of many states to express disdain for unlimited corporate funding. Early last week 55 towns in Vermont passed resolutions proposing a constitutional amendment that would limit the rights of corporations. The Alabama legislature has also been seeking to stop PAC-to-PAC fund transfers that mask donors. Even some members of the Court seem eager to reexamine the effects of Citizens United. In response to the Montana decision, Justice Ginsburg referred to Justice Kennedy’s language in Citizens United decision saying, “Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” Meanwhile some panelists at the Federal Election Commission’s hearing last week urged the FEC not to wait for the Supreme Court to reverse Citizens United and to take regulatory action into their own hands. [Read more…] about Montana Supreme Court leading the charge against Citizens United

Montana rebels against Citizens United

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Patrick Genova

in-depth article

It may be surprising that the biggest blow to corporations in 2011 didn’t come from Wall Street protestors. Late last month Montana’s Supreme Court took a swing at corporate spending in elections holding, in spite of the decision in Citizens United v. Federal Election Committee, that a 100-year-old law banning corporate spending was valid. In doing so, the court held that the lower court’s reading of Citizens United was erroneous. The Court in Citizens United said, “Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’”

So what exactly should be considered a “compelling interest” for bans on political spending? The Supreme Court of Montana answers bluntly that they have met the standard of review set out in Citizens United. In assessing Chief Justice McGrath explains Montana’s long standing fight against corporate spending. [Read more…] about Montana rebels against Citizens United